The U.S. Fish and Wildlife Service (FWS) is considering eliminating most public oversight of wind turbine impacts on protected bald and golden eagles by offering developers 30-year permits to kill eagles by accident, as opposed to the current 5-year permits. What's more, they're shaping the implementation of that proposed policy change in a series of private "stakeholders'" meetings to which the public is not invited.
That's the takeaway from a letter sent Tuesday by the American Bird Conservancy (ABC), to the Department of the Interior. ABC is demanding Interior halt consideration of issuing 30-year eagle take permits until Sally Jewell, the incoming Interior Secretary, has a chance to examine the issue.
"The public places a high value on both Bald and Golden Eagles, two species that have inspired awe, pride, and patriotism in America's citizens for generations," said Darin Schroeder, ABC's Vice President of Conservation Advocacy. "The Bald Eagle is America's national symbol and was only removed from the endangered species list in 2007. Thus, this important and highly controversial decision should not be made without the full participation and careful consideration of the new Secretary of the Interior."
For Interior's part, that Department's Press Secretary Jessica Kershaw told ReWire "We are in receipt of the [ABC] letter. The Eagle Tenure Rule remains under current review."
According to ABC, the existing system of five-year-long "take" permits would allow public and expert oversight of wind turbine impacts on eagles during the renewal process. Moving to a 30-year permit system would eliminate most opportunities for review; even if reviews were held at the end of each 30-year period, the level of public expertise available for those reviews would likely be much lower as participants in the previous review may well have retired or died in the three decades intervening.
Neither bald nor golden eagles enjoy protection under the Endangered Species Act, but since 2009 FWS has been authorized to issue take permits under the auspices of the Bald and Golden Eagle Protection Act (BGEPA), and since that time wind developers have complained that following the provisions of that law hurts their ability to profit from erecting turbines in eagle habitat. As recently as 2009, FWS seemed not to be too sympathetic to wind developers' complaints. In that year, the agency pointed out that take permits with "tenures" lasting longer than five years were "incompatible with preservation":
"the rule limits permit tenure to five years or less because factors may change over a longer period of time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or the golden eagle. Accordingly, we believe that five years is a long enough period within which a project proponent can identify when the proposed activity will result in take."
What changed FWS's mind? No one's saying, though pressure from above is a safe bet. FWS is a sub-agency of the Interior Department, whose outgoing Secretary Ken Salazar reportedly clamped down hard on any of his fiefdoms that offered challenges to his overarching goal of developing as much renewable energy on public lands as the law, loosely interpreted, would allow. Salazar, whose pugnacity was the stuff of Internet jokes, is widely said to have issued gag orders to Interior agencies who might otherwise have legitimately objected to ill-sited, ill-thought-out renewable developments.
Whether that pressure would continue under the direction Interior Secretary nominee Sally Jewell is unknown.
Nonetheless, FWS seems to have taken the Salazar-era directive to heart, even in situations it didn't expect to garner public attention. ABC's press release refers to a rough transcript obtained by the San Diego-based Desert Protective Council (DPC) of a November 2012 meeting at the headquarters of renewable energy developer RES Americas, attended by 21 people including representatives of wind companies and trade associations, agency staff from FWS and USGS, and large environmental groups such as the Sierra Club and Audubon Society.
That transcript records David Cottingham, Senior Advisor to the FWS' Director Dan Ashe, starting things out by observing that the 2009 eagle rule was being revised, and saying that the purpose of the meeting was to "discuss what can be done in the interim to enable wind energy projects to get permitted."
That is, of course, an inversion of FWS's stated mission, which reads "to conserve, protect, and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people."
The November meeting seems to have been a typical "stakeholder meeting," at which a few carefully selected representatives of environmental groups meet with agency staff and industry people. The green groups in attendance included the Sierra Club, the National Audubon Society, Defenders of Wildlife, the Natural Resources Defense Council, and the Nature Conservancy, none of which are shown in the transcript as pointing out that FWS' mission is to protect eagles, not get wind projects expedited.
Instead, the bulk of the meeting as reported in the transcript concerned whether -- as participant Todd Katzner of West Virginia University put it -- wind facilities already in existence that kill eagles could be considered "experiments in operational mitigation."
There was more discussion of how operating wind facilities might contribute data on mortality that we can expect from operating wind facilities, but there was also relatively undisguised discussion of how to manage public perception of the issue, saving FWS's face, while allowing wind development to proceed. As John Anderson of the trade group American Wind Energy Association (AWEA) put it;
We know there are facilities that are taking eagles now, and we know of a few applicants that are expected to take eagles. We need to develop a plan that meets the intent of the law and allow the Service [FWS] to demonstrate that they are upholding BGEPA while we address the long-term eagle policy issue.
That language is telling. AWEA isn't addressing the long-term impacts of their members' facilities on eagles, but rather the "long-term eagle policy issue." And the group isn't assembled to help FWS enforce the Bald and Golden Eagle Protection Act, but to demonstrate that they're upholding it. Abiding by the law isn't at issue: public relations is.
Nowhere in this meeting, nor apparently the others FWS has convened, was there an avenue for public comment. In fact, the public comment period on the eagle tenure rulemaking closed almost a year ago, in April 2012. Giving special privileges to a few parties to offer comments on pending rulemaking when the public comment period has already closed is certainly unfair to the 700 members of the public that followed the deadline rules for comment on the eagle issue. As noble as the intentions of the environmental groups may be, they do not represent the public in any formal way: they are neither elected nor appointed by any elected official.
The letter by ABC to the Interior Department makes this point in no uncertain terms:
These meetings were held in response to a letter sent to the Secretary of the Interior last year, and they raise serious questions for the Fish and Wildlife Service related to the Federal Advisory Committee Act and other federal laws. Eagle take permits could affect the interests of many Americans and many industries, including the timber and rail industries, Indian tribes, and many more conservation and scientific organizations than have been allowed to participate in these invitation-only meetings.
"All of these eagle meetings should have been open to the public. Eagles are too important to the American people for FWS to determine their fate behind closed doors," said ABC's Darin Schroeder.